New
Mexico Register / Volume XXXV, Issue 7 / April 9, 2024
This is an amendment to 15.2.1 NMAC, Sections 7, 8 & 9, effective
4/9/2024
15.2.1.7 DEFINITIONS:
A. Definitions beginning with the letter “a”:
(1) “Act” means the New Mexico
Horseracing Act, New Mexico Statutes Annotated, 1978 Compilation, and Sections
60-1A-1 through 60-1A-30 including any amendments to that statute.
(2) “Added money” is the amount added
into the purses for a stakes race by the association, or by sponsors,
state-bred programs or other funds added to those monies gathered by
nomination, entry, sustaining and other fees coming
from owners of horses participating in the race.
(3) “Age” of a horse foaled in North
America shall be reckoned from the first day of January of the year of foaling.
(4) “Also eligible” pertains to a number
of eligible horses, properly entered, which were not drawn for inclusion in a
race, but which become eligible according to preference or lot if an entry is
scratched prior to the scratch time deadline; in a trial race, the next preferred
contestant that is eligible to participate when an entry is scratched, pursuant
to the written conditions of the race.
(5) “Allowance race” is an overnight race
for which eligibility and weight to be carried are determined according to
specified conditions which include age, sex, earnings
and number of wins.
(6) “Appeal” is a request for the
commission or its designee to investigate, consider and review any decisions or
rulings of stewards of a meeting.
(7) “Arrears” are all monies owed by a
licensee, including subscriptions, jockey fees, forfeitures, and any default
incident to these rules and are past due.
(8) “Association” is an individual or
business entity holding a license from the commission to conduct racing with
pari-mutuel wagering.
(9) “Association grounds” are all real
property utilized by the association in the conduct of its race meeting,
including the racetrack, grandstand, concession stands offices, barns, stable
area, employee housing facilities and parking lots.
(10) “Authorized agent” is a person
licensed by the commission and appointed by a written instrument, signed and acknowledged before a notary public by the owner
in whose behalf the agent will act.
B. Definitions beginning with the letter “b”:
(1) “Beneficial interest” is profit,
benefit, or advantage resulting from a contract, or the ownership of an estate
as distinct from the legal ownership or control. When considered as designation of character
of an estate, is such an interest as a devisee, legatee, or donee
takes solely for his own use or benefit, and not as holder of title for use and
benefit of another.
(2) “Betting interest” refers to one or
more contestants in a pari-mutuel contest, which are identified by a single
program number for wagering purposes.
(3) “Bleeder” is any horse, which
exhibits symptoms of epistaxis and/or respiratory tract hemorrhage.
(4) “Bleeder list” is a tabulation of all
bleeders to be maintained by the commission.
(5) “Board” means the gaming control
board.
(6) “Breakage” means the odd cents by
which the amount payable on each dollar wagered exceeds a multiple of ten.
(7) “Breeder” is the person or entity
recorded by the national registry organization for the particular
breed of the horse.
C. Definitions beginnning with
the letter “c”:
(1) “Carryover” refers to non-distributed
monies, which are retained and added to a corresponding pool in accordance with
these rules.
(2) “Catastrophic injury” means an
equine injury sustained during racing or training resulting in death or
euthanasia of a horse within 72 hours of injury.
[(2)] (3) “Claiming race” is a race in which
any horse starting may be claimed (purchased for a designated amount) in
conformance with the rules.
[(3)] (4) “Classified
handicap” is a free handicap race in which contestants are assigned
weights to be carried by the handicapper for the purpose of equaling their
respective chances of winning.
[(4)] (5) “Commission” means the state racing
commission.
[(5)] (6) “Conditions” are qualifications,
which determine a horse's eligibility to be entered in a race.
[(6)] (7) “Contest” is a competitive event on
which pari-mutuel wagering is conducted.
[(7)] (8) “Contestant” is an individual
participant in a contest.
[(8)] (9) “Controlled substance” is any
substance included in the five classification schedules of the (U.S.)
Controlled Substance Act of 1970.
[(9)] (10) “Course” is the track
over which horses race.
D. Definitions beginning with the letter “d”:
(1) “Day” is a 24-hour period ending at
midnight.
(a) Dark day - a day during a live or a
simulcast race meeting when no pari-mutuel wagering is conducted.
(b) Race day - a day during a race
meeting when pari-mutuel wagering is conducted on live racing.
(c) Simulcast race day - a day during a
race meeting when pari-mutuel wagering is conducted on simulcast racing.
(2) “Dead heat” is the finish of a race
in which the noses of two or more horses reach the finish line at the same
time.
(3) “Declaration” is the act of
withdrawing an entered horse from a race prior to the closing of entries.
(4) “Designated race” shall mean any stakes race or associated
trial as designated by the stewards.
(5) “Draw” is the process of assigning postpositions
and the process of selecting contestants in a manner to ensure compliance with
the conditions of the rules of racing.
E. Definitions beginning with the letter “e”:
(1) “Entry” is a horse eligible for and
entered in a race; two or more horses entered in the same race, which have
common ties of ownership, lease or training (see
“coupled entry”).
(2) “Equipment” as applied to a horse,
means riding crop, blinkers, tongue strap, muzzle, hood, nose band, bit, shadow
roll, martingale, breast plate, bandage, boot, plates, flipping halter and all
other paraphernalia common or otherwise which might be used on or attached to a
horse while racing.
(3) “Exhibition race” is a race for which
a purse is offered but no wagering is permitted.
(4) “Exotic wagering” means all wagering
other than on win, place or show, through pari-mutuel
wagering;
(5) “Expired ticket” is an outstanding
ticket, which was not presented for redemption within the required time period for which it was issued.
(6) “Export” means to send a live
audiovisual broadcast of a horse race in the process of being run at a horse
racetrack from the originating horse racetrack to another location.
F. Definitions beginning with the letter “f”:
(1) “Financial interest” is an interest
that could result in directly or indirectly receiving a pecuniary gain or
sustaining a pecuniary loss as a result of ownership
or interest in a horse or business entity; or as a result of salary, gratuity,
or other compensation or remuneration from any person. Being the lessee or lessor of a horse shall
be construed as having a financial interest.
(2) “Flat race” is a race run over a
course on which no jumps or other obstacles are placed.
(3) “Forfeit” is money due from a
licensee because of error, fault, neglect of duty, breach of contract or a
penalty imposed by the stewards or the commission.
G. Definitions beginning with the letter “g”:
(1) “Guarantee purse money” is the same as
a stake with a guarantee by the association that the gross purse shall not be
less that the amount stated.
(2) “Guest association” is an
association, which offers licensed pari-mutuel wagering on contests conducted,
by another association (the host) in either the same state or another
jurisdiction.
(3) “Guest state” means a jurisdiction,
other than a jurisdiction in which a horse race is run, in which a horse
racetrack, off-track wagering facility or other facility that is a member of
and subject to an interstate common pool is located.
(4) “Guest track” means a horse
racetrack, off-track wagering facility or other licensed facility in a location
other than the state in which a horse race is run that is a member of and
subject to an interstate common pool.
H. Definitions beginning with the letter “h”:
(1) “Handicap” is a race in which the
weights to be carried by the horses are assigned by the racing secretary or
handicapper for the purpose of equalizing the chances of winning for all horses
entered.
(2) “Handle” is the total amount of all pari-mutuel wagering sales excluding refunds and
cancellations.
(3) “Horse” is any horse or mule
(including and designated as a mare, filly, stallion, colt, ridgling
or gelding) registered for racing.
(4) “Horse race” means a competition
among racehorses on a predetermined course in which the horse completing the
course in the least amount of time generally wins.
(5) “Host association” is the association
conducting a licensed pari-mutuel meeting from which authorized contests or
entire performances are simulcast.
(6) “Host track” means the horse
racetrack from which a horse race subject to an interstate common pool is
transmitted to members of that interstate common pool, also known as a “sending
track.”
I. Definitions beginning with the letter “i”:
(1) “Import” means to receive a live
audiovisual broadcast of a horse race.
(2) “Inquiry” is an investigation by the
stewards of potential interference in a contest prior to declaring the result
of said contest official.
(3) “Interstate common pool” means a
pari-mutuel pool that combines comparable pari-mutuel pools from one or more
locations that accept wagers on a horse race run at a sending track for
purposes of establishing payoff prices at the pool members' locations,
including pools in which pool members from more than one state simultaneously
combine pari-mutuel pools to form an interstate common pool.
(4) “Invitational handicap” is a handicap
for which the racing secretary or handicapper has selected the contestants and
assigned the weights.
J. Definitions beginning with the letter “j”:
(1) “Jockey” is a person licensed to ride
in races.
(2) “Jockey club” means an organization
that administers thoroughbred registration records and registers thoroughbreds.
K. Definitions beginning
with the letter “k”: [Reserved]
L. Definitions beginning with the letter “l”:
(1) “Licensee” is any person or entity holding a license
from the Commission to engage in racing or a regulated activity.
M. Definitions beginning with the letter “m”:
(1) “Maiden” is a horse, which shows in [the
daily
racing form or the American quarter horse chart book] Equibase and RTO Incompass
system as never having won a race at
a recognized meeting. A maiden, which
has been disqualified after finishing first in a race, is still a maiden.
(2) “Maiden race” is a race restricted to
maidens.
(3) “Match race” is a race between two horses
under conditions agreed to by their owners.
(4) “Meeting” is an entire period of
consecutive days an association which is issued a racetrack license, is
authorized by the commission to conduct live racing. For purposes of this rule, the commission
shall determine the beginning and end dates of the race meet as well as the
dates in chich live racing will be conducted within
the determined consecutive days..
(5) “Minus pool” occurs when the payout
is in excess of the net pool.
(6) “Month” is a calendar month.
(7) “Mutuel field” refers to two or more
contestants in a contest that are treated as a single betting interest for
pari-mutuel wagering purposes because the number of betting interests exceeds
the number that can be handled individually by the pari-mutuel system.
N. Definitions beginning with the letter “n”:
(1) “Net pool” is the amount of gross
ticket sales less refundable wagers and statutory commissions.
(2) “New Mexico bred” is a horse
registered by the New Mexico horse breeders’ association.
(3) “New Mexico bred race” is a race in
which the contestants are registered as New Mexico bred horses.
(4) “No contest” is a race cancelled for
any reason by the stewards.
(5) “Nomination” is the naming of a horse
to a certain race or series of races.
(6) “Nominator” is the person or entity
in whose name a horse is nominated for a race or series of races.
O. Definitions beginning wih
the letter “o”:
(1) “Objection” is a written complaint
made to the stewards concerning a horse entered in a race and filed in a timely
manner prior to the scheduled post time of the first race on the day in which
the questioned horse is entered; or a verbal claim of foul in a race lodged by
the horse's jockey, trainer, owner or the owner's authorized agent before the
race is declared official.
(2) “Official or racing official” means
assistant racing secretary, chief of security, director of racing or similar
position, clerk of scales, clocker, general manager, handicapper, horse
identifier, horsemen's bookkeeper, jockey room custodian, official
veterinarian, paddock judge, pari-mutuel manager, patrol judge, placing judges,
racing secretary, racing veterinarian, stable superintendent, starter, steward,
timer, and track superintendent.
(3) “Official samples” is a portion of any bodily substance or
fluid, including but not limited to, tissue, hair, blood
or urine obtained from a horse at the direction of the commission for the
purposes of determining the presence of a prohibited substance.
(4) “Official order of finish” is the order of finish of the contestants in
a contest as declared official by the stewards.
(5) “Official starter” is the official
responsible for dispatching the horses for a race.
(6) “Official time” is the elapsed time
from the moment the first horse crosses the starting point until a horse
crosses the finish line.
(7) “Off time” is the moment, at which,
on the signal of the official starter, the doors of the starting gate are
opened, officially dispatching the horses in each contest.
(8) “Optional claiming race” is a contest
restricted to horses entered to be claimed for a stated claiming price and to
those which have started previously for that claiming price or less.
(9) “Out of competition” is
defined as not participating in a race.
(10) “Out of competition testing”
test(s) that may be conducted on any horse that is on the grounds of a racetrack
or training center under the jurisdiction of the commission; or under the care
or control of a trainer or owner licensed by the commission; or whose papers
are filed in the racing office; or has been nominated to a stakes race.
(11) “Outstanding ticket” is a winning or
refundable pari-mutuel ticket, which was not cashed during the performance for
which it was issued; also known as “outs”.
(12) “Overnight race” is a race for which
entries close at a time set by the racing secretary and for which the owners of
the horses do not contribute to the purse.
(13) “Owner” is defined as a person who
holds any title, right or interest, whole or partial in a horse, including the
lessee and lessor of a horse.
P. Definitions beginning with the letter “p”:
(1) “Paddock” is an enclosure in which
contestants scheduled to compete in a contest are confined prior to racing.
(2) “Pari-mutuel system” is the manual,
electromechanical, or computerized system and all software (including the totalisator, account betting system and offsite betting
equipment) that is used to record bets and transmit wagering data.
(3) “Pari-mutuel wagering” is a form of
wagering on the outcome of an event in which all wagers are pooled and held by
an association for distribution of the total amount, less the deductions
authorized by law, to holders of tickets on the winning horses.
(4) “Patron” is a member of the public
present on the grounds of a pari-mutuel association during a meeting for the
purpose of wagering or to observe racing.
(5) “Payout” is the amount of money
payable to winning wagers.
(6) “Performance” is a schedule of races
run consecutively as one program.
(7) “Person” is one or more individuals, a
partnership, association, organization, corporation, joint venture, legal
representative, trustee, receiver, syndicate, or any other legal entity.
(8) “Positive test” means the result of a
test, conducted as provided in these rules on an official sample, which
indicates the presence of any prohibited substance.
(9) “Post position” is the pre-assigned
position from which a horse will leave the starting gate.
(10) “Post time” is the scheduled starting
time for a contest.
(11) “Prima facie evidence” is evidence
that, until its effect is overcome by other evidence, will suffice as proof of
fact in issue.
(12) “Private barn” is a barn and real
property owned or leased by a trainer in which stalls are provided for races at
a licensed New Mexico racetrack and who have direct access to a New Mexico
racetrack.
(13) “Profit” is the net pool after
deduction of the amount bet on the winners.
(14) “Profit split” is a division of
profit amongst separate winning betting interests or winning betting
combinations resulting in two or more payout prices.
(15) “Program
Trainer” is a licensed trainer who solely for the purpose of the
official race program, is identified as the trainer of the horse that is actually under the control of , and trained by, another
person who may or may not hold a current trainer’s license in any jurisdiction.
(16) “Prohibited substance” is any drug, chemical, or other substance
which, when administered to a horse can create a change in the normal
physiological performance of the horse's racing ability, including
(a) stimulants
or depressants or other substances as defined by the association of racing
commissioners international; or
(b) that
may interfere with testing procedures; or
(c) that
is a therapeutic medication present in excess of
established acceptable levels; or
(d) that
is present in the horse in excess of levels that could
occur naturally; or
(e) that
is a substance specified by rule that is not allowed to appear in an out of
competition or hair sample.
(17) “Program” is the published listing of
all contests and contestants for a specific performance.
(18) “Protest” is a written complaint
alleging that a horse is or was ineligible to race.
(19) “Purse” is the total [cash] dollar
amount, including but not limited to extra New Mexico horse breeders
association money as listed in the official daily program, for which a race
is contested whether paid at the time of the race or at a future date.
Q. Definitions beginning with the letter “q”:
[Reserved]
R. Definitions beginning with the letter “r”:
(1) “Race” is a contest between
contestants at a licensed meeting.
(2) “Restricted area” is an enclosed
portion of the association grounds to which access is limited to licensees
whose occupation or participation requires access.
(3) “Result” is that part of the official
order of finish to determine the pari-mutuel payout of pools for each
individual contest.
S. Definitions beginning with the letter “s”:
(1) “Scratch” is the act of withdrawing
an entered horse from a contest after the closing of entries.
(2) “Scratch time” is the deadline set by
the association for withdrawal of entries from a scheduled performance.
(3) “Simulcast” refers to the live audio
and visual transmission of a contest to another location for pari-mutuel
wagering purposes.
(4) “Single price pool” is an equal
distribution of profit to winning betting interests or winning betting
combinations through a single payout price.
(5) “Sponsor added money” is added to a
race in return for name and/or advertising recognition and is not added money.
(6) “Stable name” is a name used other than
the actual legal name of an owner or lessee and registered with the commission.
(7) “Stakes race” is a contest in which
nomination, entry and/or starting fees contribute to the purse. No overnight race shall be considered a
stakes race.
(8) “Starter” refers to a horse, which
becomes an actual contestant in a race by virtue of the starting gate opening
in front of it upon dispatch by the official starter.
(9) “Starter allowance” is a race in
which a horse establishes eligibility by starting for a claimed price pursuant
to the conditions of the race.
(10) “Steeplechase race” is a contest in
which horses mounted by jockeys run over a course on which jumps
or other obstacles are placed.
(11) “Steward” is a duly appointed racing
official with powers and duties specified by the act and these rules.
(12) “Substitute Steward” is a
licensed or certified racing official pursuant to 60-1A-12, duly approved by the
commission and appointed by the executive director or the presiding steward,
with the powers and duties specified by the act and these rules.
T. Definitions beginning with the letter “t”:
(1) “Takeout” is the total amount of
money, excluding breakage, withheld from each pari-mutuel pool, as authorized
by statute or rule.
(2) “Therapeutic medication” is any drug,
chemical, or chemical agent, that when administered to a horse is calculated to
improve or protect the health and soundness of said horse. The promotion of formful
racing performance is the intent of administering a therapeutic medication.
(3) “Totalisator”
is the system used for recording, calculating, and disseminating information
about ticket sales, wagers, odds and payout prices to
patrons at a pari-mutuel wagering facility.
(4) “Trainer” is a person who
holds a valid trainer’s license and who has a horse eligible to race under his
care, custody, or control at the time entry is made.
(5) “Trial race” is part of a series of
races in which horses participate for the purpose of determining eligibility
for a subsequent race.
(6) “Tubing”
is the administration of any substance via a naso-gastric
tube.
U. Definitions beginning
with the letter “u”: [Reserved]
V. Definitions beginning
with the letter “v”: [Reserved]
W. Definitions beginning
with the letter “w”:
(1) “Walkover” is a race in which only
one contestant starts or in which all the starters are owned by the same
interest. To claim the purse the
horse(s) must start and go the distance of the race.
(2) “Week” is a period of seven
consecutive 24-hour periods.
(3) “Weigh in” is the presentation of a
jockey to the clerk of scales for weighing after a race.
(4) “Weigh out” is the presentation of a
jockey to the clerk of scales for weighing prior to a race.
(5) “Weight for age” is a race in which a
fixed scale is used to assign the weight to be carried by individual horses
according to age, sex, distance of the race, and season of the year.
(6) “Winner” is the horse whose nose
reaches the finish line first or is placed first through disqualification by
the stewards.
X. Defintions
beginning with the letter “x”: [Reserved]
Y. Defintions
beginning with the letter “y”:
“Year” shall be a calendar year.
Z. Definitions beginning
with the letter “z”: [Reserved]
[15.2.1.7 NMAC - Rp, 15 NMAC 2.1.7, 3/15/2001; A, 2/14/2002; A, 8/30/2007;
A, 12/1/2010; A, 1/1/2013; A, 5/1/2013; A, 8/15/2014; A, 7/1/2017; A,
3/14/2018; A, 9/26/2018; A, 12/19/2019; A, 12/28/2021; A, 4/9/2024]
15.2.1.8 COMMISSION:
A. Purpose:
(1) The New Mexico racing commission
created by the act, Section 60-1A-4, New Mexico Statutes, 1978, Annotated, is
charged with implementing, administering and enforcing
the act. It is the intent of the
commission that the rules of the commission be interpreted in the best
interests of the public and the jurisdiction.
(2) Through these rules, the commission
intends to encourage agriculture, the horse breeding industry, the horse
training industry, tourism and employment
opportunities in this jurisdiction related to horse racing and to control and
regulate pari-mutuel wagering in connection with that horse racing.
B. General authority:
(1) The commission shall regulate each
race meeting and the persons who participate in each race meeting.
(2) To the extent permitted by the Act
the commission may delegate to the agency director and the stewards all powers
and duties necessary to fully implement the purposes of the Act.
C. Membership and meetings:
(1) The state racing commission shall
consist of five members, no more than three of who shall be members of the same
political party. They shall be appointed
by the governor, and no less than three of them shall be practical breeders of
racehorses within the state. Each member
shall be an actual resident of New Mexico and of such character and reputation
as to promote public confidence in the administration of racing affairs.
(2) The commission shall meet at the call
of the chair, as requested by a majority of the members
or as otherwise provided by statute.
Notice of the meetings must be given and the meetings must be conducted
in accordance with the Open Meetings Act, Sections 10-15-1 through 10-15-4
NMSA, 1978.
(3) If it is difficult or impossible for
a racing commission member to attend a meeting of the racing commissioners,
that member may participate in the meeting virtually or by
telephone. [The telephone shall be a
speakerphone that allows all commission members and the public to hear all
speakers at the meeting.]
(4) A majority of
the commission constitutes a quorum.
When a quorum is present, a motion before the commission is carried by
an affirmative vote of the majority of the
commissioners present at the meeting.
(5) A commission member may not act in
the name of the commission on any matter without a majority vote of a quorum of
the commission.
D. Annual report: The
commission shall submit an annual report as prescribed by statute.
E. Employees:
(1) The commission shall employ an agency
director who shall employ other employees necessary to implement, administer
and enforce the Act.
(2) The agency director shall maintain
the records of the commission and shall perform other duties as required by the
commission. Except as otherwise provided
by a rule of the commission, if a rule of the commission places a duty on the
agency director, the agency director may delegate that duty to another employee
of the commission. The commission and
the agency director may not employ or continue to employ a person:
(a) who owns a financial interest in an
association in this jurisdiction;
(b) who accepts remuneration from an
association in this jurisdiction;
(c) who is an owner, lessor or lessee of
a horse that is entered in a race in this jurisdiction; or
(d) who accepts or is entitled to a part
of the purse or purse supplement to be paid on a horse in a race held in this
jurisdiction.
(3) Commission employees shall not wager
in any pari-mutuel pool at any facility or through any pari-mutuel system
subject to the jurisdiction of the commission.
(4) Commission employees shall not
participate in any gaming activity conducted by an association during working
hours on scheduled workdays.
F. Power of
entry:
(1) A member or employee of the
commission, a steward, a peace officer or a designee
of such a person may enter any area on association grounds or other place of
business of an association at any time to enforce or administer the Act or
commission rules.
(2) No licensee may hinder a person who
is conducting an investigation under, or attempting to
enforce, or administer, the Act or commission rules.
G. Subpoenas:
(1) A member of the commission, the
agency director, the stewards, the presiding officer of a commission proceeding or other person authorized to perform duties
under the Act may require by subpoena the attendance of witnesses and the
production of books, records, papers, correspondence and other documents.
(2) Any aggrieved person or any licensee
or license holder against whom allegations of violations of racing statutes or
rules have been made shall have the right to have subpoenas and subpoenas duces
tecum issued as of right prior to the hearing to compel discovery as provided
in these rules and to compel the attendance of witnesses and the production of
relevant physical evidence upon making written and timely request therefor to
the commission or hearing officer; the issuance of such subpoenas after the commencement
of the hearing rests in the discretion of the commission or the hearing
officer.
(3) A member of the commission, the
agency director, a presiding officer of a commission proceeding
or other person authorized by the commission may administer an oath or
affirmation to a witness appearing before the commission or a person authorized
by the commission.
(4) If a person fails to comply with a
subpoena issued on behalf of the commission, the commission or agency director
may invoke the aid of the appropriate court in requiring compliance with the
subpoena. For a person compelled to
appear before the commission under this section, the commission shall pay
expenses in accordance with the statutory provisions for state employees. The commission reserves the right to bill the
expenses to parties requiring the appearance of the subpoenaed person.
H. Organization’s financial requirements:
(1) The New Mexico horse breeders’ association shall establish interest-bearing accounts, designated as gaming funds for purses.
(2) The New Mexico horse breeders’ association shall ensure all accounting of funds deposited with and paid out or distributed by the New Mexico horse breeders’ association pursuant to the Horse Racing Act is in accordance with or exceeds generally accepted accounting principles.
(3) The New Mexico horse breeders’ association shall provide at a minimum the following insurance policies:
(a) $1,000,000 cyber liability
(b) $1,000,000 directors, officers, and employment practices
(c) $1,000,000 employee theft
(4) The New Mexico horse breeders’ association will provide the New Mexico racing commission with a copy of their yearly independent audits, and proof of insurance.
(5) The associations and the New Mexico horse breeders’ association with regard to gaming monies shall keep accurate, complete, and legible records with reports to the commission to include:
(a) monthly reconciliation of amounts collected to account statements;
(b) copy of account authorizing signatures;
(c) any changes in authorizing signatures; and
(d) detail of disbursements from the accounts.
I. Records:
(1) Inspection and copying of commission
records are governed by the provisions of the Inspection of Public Records Act,
Sections 14-2-1 through 14-2-12 NMSA 1978.
(2) Except as otherwise authorized by
statute, or regulation, all original records of the commission shall be
maintained in the offices of the commission.
No person may remove an original record from the offices of the commission
without the approval of the agency director.
(3) To inspect commission records, a
person must make a written request to the appointed records official and to
receive copies must pay all costs for copying within the limits set by the
Public Records Act.
J. Issuance of license to conduct a race meeting and allocation of race dates:
(1) The commission shall allocate race
dates to each association in accordance with the act and these rules. An association shall apply to the commission
for a license and racing dates not later than June 1st for all proposed racing
meets and dates to be run in the succeeding calendar year. Applications shall not be received or amended
after this date except by approval of a majority of
the commission. The application must
contain the information required by statute and the commission. After the request is filed, the commission
may require the association to submit additional information. The commission may limit, condition
or otherwise restrict any license to conduct horse racing or a horse race
meeting in the state of New Mexico.
(2) The burden of proof is on the
association to demonstrate that its receipt of a license to conduct a race meet
and the allocation of the race dates will be in the public interest and will
achieve the purposes of the act.
(3) In issuing licenses for race meetings
and allocating race dates under this section, the commission may consider the
following factors: public interest,
health of the industry, safety and welfare of participants, and the criteria
for licensure to conduct a race meet set forth in the act and in these rules.
(4) Prior
to approving an application for a new license for a horse racetrack, other than
the licenses in existence as of January 1, 2007, or an application by a
licensed horse racetrack to move its racing and gaming facilities to a new
location, the commission shall solicit and consider the views on the
application by the Indian tribes, nations and pueblos
in the following manner:
(a) provide
written notice to all federally recognized Indian tribes, nations or pueblos
that are authorized by law to enter into a gaming compact with the state of New
Mexico under the Indian Gaming Regulatory Act, 25 U.S.C. Section 2701 et seq.,
(“Indian Tribes”) that such an application has been filed with the commission
within 15 days of such filing and provide a copy of all non-confidential
documents submitted by an applicant to an Indian tribe upon request, at the
Indian tribe’s expense;
(b) allow
Indian tribes 45 days to respond to the application by submitting written
comments to the commission prior to holding any public hearing at which final
action on the application may be considered; such comments shall be immediately
forwarded to the applicant by the commission, but no later than 15 days prior
to holding any public hearing at which final action on the application may be
considered; the views of the Indian tribes may include, but are not limited to,
the following:
(i) potential economic impact of
approval of said license on a specific Indian tribe’s government or gaming
facility, including impact on revenue sharing with the state of New Mexico; the
number of miles from the nearest tribal gaming facility; the potential impact
on the nearest tribal gaming facility’s market share; and the potential impact
on the Indian tribe’s income from gaming facilities;
(ii) identification
of other significant impacts on the Indian tribe;
(c) any
public hearing at which final action on the application may be considered must
be at least 15 days after the 45 day comment period for Indian tribes set forth
above;
(d) the
commission shall consider and evaluate the Indian tribes’ views prior to taking
any final action on the application; to “consider and evaluate” means to think
about carefully and seriously;
(e) the
above procedures for notification to Indian tribes shall not apply to the
annual renewal of a horse racetrack license.
(5) The association shall be obligated to
conduct pari-mutuel racing, except in the case of emergencies, on each race
date allocated. Any change in race dates
must be approved by the commission. In
the case of emergencies the stewards may authorize
cancellation of all or a portion of any race day.
(6) All applicants for an initial license
to conduct horse racing or a horse race meeting in the state of New Mexico
shall submit the following information to the commission in the form of a
verified application, including an original and six copies.
(a) The name of the applicant and
indicate whether it is an individual, firm, association, partnership, corporation or other legal entity.
(b) The names, residences, and
nationalities of individual applicants or members of a partnership, association or firm.
(c) If the applicant is a corporation,
the following information must be furnished, and if the applicant is a parent
or subsidiary of another corporation, the following information must be
furnished for each entity.
(i) The
year in which the corporation was organized, its form of organization and the
name of the state under the laws of which it was organized. Articles of incorporation and bylaws must
also be submitted.
(ii) The classes of capital stock
authorized, the amount authorized, and the amount outstanding as of the date
not less than 15 days prior to the filing of the application.
(iii) The name and address of each person who
owns of record or is known by the applicant to own beneficially, ten percent or
more of any class of capital stock. This
can be indicated as name and address; class of stock owned; type of ownership
whether of record or beneficial; amount owned; percent of the class of stock.
(iv) Outline briefly
the dividend rights, voting rights, liquidation rights, preemptive rights,
conversion rights, and redemption provisions.
If the rights of holders of such stock may be modified other than by a
vote of majority or more of the shares outstanding, voting as a class, so state
and explain briefly.
(v) If organized as a corporation within
the past five years, furnish the names of the promoters, the nature and amount
of anything of value received or to be received by each promoter directly or
indirectly from the applicant and the nature and amount of any assets,
services, or other consideration therefore received or to be received by the
applicant.
(vi) List the names of all directors and
executive officers and all persons chosen to become directors or executive
officers. Indicate all other positions
and offices held by each such person, and the principal occupation during the
past five years of each person to become a director or executive officer. For the purposes of this subparagraph,
“executive officer” means the president, vice-president, secretary and
treasurer, and any other person who performs policy-making, supervisory,
administrative, or financial functions for the applicant.
(vii) Describe in detail the financial
arrangements, which have been made for acquisition and operation of racing
facilities, including the nature and source of any funds or other property,
real or personal, which may be used in this connection.
(viii) Identify in detail the source(s) and
terms of any loans, loan commitments, lines of credit, pledges, stock
subscriptions, and any other source of funds which may be used in the
acquisition or operation of racing facilities.
(ix) State in detail the terms of any
proposed purchase of stock or assets in a current licensee.
(x) State whether a substantial portion
of the assets or of the capital stock is encumbered by any short-term or
long-term debt. Explain fully and state
the names and addresses of parties holding security interests or promissory
notes from the applicant and the stockholders, where the stock is pledged as
security, and outline the terms of and submit the agreements creating the
security interests.
(xi) Applicants must submit balance sheets
and profit and loss statements for each of the three fiscal years immediately
preceding the application, or for the period of organization if less than three
years. If the applicant has not
completed a full fiscal year since its organization, or if it acquires or is to
acquire the majority of its assets from a predecessor
within the current fiscal year, the financial information shall be given for
the current fiscal year.
(xii) Applicant must submit with application a
current financial statement for each director, executive officer, manager, and
stockholders owning ten percent or more of the outstanding shares in any
corporate applicant.
(xiii) All financial information shall be
accompanied by an unqualified opinion of a duly licensed certified public
accountant, or if the opinion is given with qualifications, the reasons for the
qualifications must be stated.
(xiv) For applicants other than corporation,
list the names and addresses of all executive officers and managerial
officers. Indicate positions and offices
held by each person named and their principal occupation(s) during the past
five years.
(xv) State whether any director, executive
officer, manager, or stockholder has ever been convicted of a crime and
describe the circumstances of the convictions.
(xvi) Describe any pending legal proceedings to
which the applicant or any of its subsidiaries or parent corporations is
involved, or of which any of their property is the subject. Include the name of the court or agency in
which the proceedings are pending, the date instituted and the principal
parties thereto.
(xvii) State in complete detail whether the
applicant, or any director, executive officer, stockholder
or manager has owned an interest in or has been employed by any firm,
partnership, association or corporation previously licensed to conduct a race
meeting in any jurisdiction.
(xviii) State actual legal description of a
proposed site for racing facilities, names and addresses of the titleholders to
the real property and names and addresses of all personal holding mortgages or
other security interests in the property.
(xix) State the number of miles from the
nearest population center, and describe briefly the
transportation facilities serving that population center.
(xx) State the exact dimensions of the track
proposed. Submit at least one copy of
the architect’s drawings showing detail of the proposed construction. If a grandstand is in existence, describe the
size and type of construction.
(xxi) Describe the efforts to be made to [insure]
ensure the security safety and comfort of patrons and license holders.
(xxii) State the availability of fire protection
and adequacy of law enforcement and police protection.
(xxiii) State the parking lot capacity and describe
the construction and type of parking facilities.
(xxiv) State the number and type of construction
of stables, other barn areas, forecourt and paddock
areas, indicating capacities and fire prevention facilities for all areas.
(xxv) Describe the facilities for owners,
trainers, jockeys, grooms and other racing personnel.
(xxvi) State the arrangements for food and drink
concessions indicating the names and addresses of concessionaires and the terms
of the concession contracts.
(xxvii) Describe any concessions, clubs
or other special facilities, existing or proposed, for patrons.
(xxviii) Indicate by actual dates the racing days
requested by applicant.
(xxix) Indicate the kind of racing to be
conducted.
(xxx) Describe the proposed [pari
mutuel] pari-mutuel operation in general and indicate in particular
the terms of the [pari mutuel] pari-mutuel
ticket sales.
(xxxi) Describe climatic conditions prevalent
during the proposed racing season.
(xxxii) Indicate the population of the local area,
and the growth trend. Indicate the
potential market including tourists, transients and
patrons from neighboring areas.
(xxxiii) Indicate the principal sources of local
income, showing the percentage from farming and ranching, industrial,
professional services, military and other governmental
sources.
(xxxiv) Describe the effect of competition with other
racetracks in and out of the state and with other sports or recreational
facilities in the area.
(xxxv) Indicate what effect opposition from area
residents may have on the economic outlook for the proposed track.
(xxxvi) Describe a strategic plan
to be proactive in an effort to prevent contagious
equine diseases, and biosecurity measures to be put in place in the event of an
outbreak including permanent quarantine facilities.
(7) A new complete primary application as
required in [Paragraph (5) of Subsection I] Paragraph (6) of
Subsection J of 15.2.1.8 NMAC is also required if any of the following
events occur:
(a) if the effective controlling interest
of any licensee is transferred or conveyed;
(b) if any involuntary transfer of either
tangible real or personal property or corporate stock gives the effective
control of the licensee to the transferee;
(c) in the event that
a transfer under Subparagraphs (a) and (b) occurs after the granting of racing
dates, the transferee shall immediately apply to the commission for a hearing
to show cause why the transferee should be permitted to continue racing under
the current grant of racing dates;
(d) failure to make application within 90
days of the date of the proposed transfer shall be grounds for revocation of
license.
(8) A race meet licensee that has been
licensed for the previous year, must submit to the commission a renewal
application, on a form provided by the commission, containing the following
information:
(a) complete listing of officers,
directors of corporation, and secondary lender affiliates;
(b) proposed race dates and simulcast
race dates;
(c) at the time of annual request for
racing dates, when the commission in its discretion determines that the
licensee should supply current information;
(d) current financial statements;
(e) changes to articles of incorporation
and bylaws;
(f) list of concessionaires and contract
services;
(g) changes from original application, or
last renewal application, in mortgagee of real property;
(h) insurance policies;
(i) any
other changes from original primary application.
(9) The commission in addition to any
other legally sufficient reason, may disapprove, deny, refuse to renew, suspend,
or revoke a license to conduct horse racing or a horse race meeting in the
state of New Mexico if any person having any direct or indirect interest in the
applicant or in the licensee, or any nature whatsoever, whether financial,
administrative, policy-making or supervisory:
(a) has been convicted of a felony under
the laws of New Mexico, the laws of any other state or the laws of the United
States, unless sufficient evidence of rehabilitation has been presented to the
commission;
(b) has been guilty of or attempted any
fraud or misrepresentation in connection with racing, breeding or otherwise,
unless sufficient proof of rehabilitation has been presented to the commission;
(c) has violated or attempted to violate
any law or regulation with respect to racing in any jurisdiction, unless
sufficient proof of rehabilitation has been presented to the commission;
(d) has consorted or associated with
bookmakers, touts or persons of similar pursuits,
unless sufficient proof of rehabilitation has been presented to the commission;
(e) is consorting or associating with
bookmakers, touts or persons of similar pursuits;
(f) is financially irresponsible as
found or determined by the commission; or,
(g) is a past or present member of or
participant in organized crime as such membership or participation may be found
or determined by the commission.
[15.2.1.8 NMAC - Rp,
15 NMAC 2.1.8, 3/15/2001; A, 8/30/2001; A, 1/31/2008; A, 4/30/2012; A,
6/1/2016; A, 2/25/2020; A, 5/24/2022; A, 4/9/2024]
15.2.1.9 DUE PROCESS AND DISCIPLINARY ACTION:
[A. Purpose
of chapter: This chapter contains the rules of procedure
for stewards' hearings and commission proceedings.
B.] A. Proceedings before the
stewards:
(1) Rights of the licensee. A person who is the subject of the
disciplinary hearing conducted by the stewards is entitled to: proper notice of all charges; confront the
evidence presented including: the right
to counsel at the person's expense; the right to examine all evidence to be
presented against them; the right to present a defense; the right to call
witnesses; the right to cross examine witnesses; and waive any of the above
rights.
(2) Complaints.
(a) On their own motion or on receipt of
a complaint from [an] a racing official or other person regarding
the actions of a licensee, the stewards may conduct an inquiry and disciplinary
hearing regarding the licensee's actions.
(b) A complaint made by someone other
than [the stewards] a racing official must
be in writing and filed with the stewards not later than 72 hours after the
action that is the subject of the complaint.
(c) In case of a notice from the state of
New Mexico human services department that a licensee is in non-compliance with
the Parental Responsibility Act, the licensee shall be notified by the board of
stewards. Thereafter the licensee shall
have 30 days to provide documentation of compliance to the board of stewards
and failure to do so will result in the suspension of the licensee's license.
(3) Summary suspension.
(a) If the stewards determine that a
licensee's actions constitute an immediate danger to the public health, safety,
integrity or welfare of the
horseracing industry, the stewards may summarily suspend the license
pending a hearing.
(b) A licensee whose license has been
summarily suspended is entitled to a hearing on the summary suspension not
later than the 10th day after
the license was summarily suspended. The
licensee may waive their right to a hearing on the summary suspension within
the 10-day limit.
(c) [The stewards shall conduct a
hearing on the summary suspension in the same manner as other disciplinary
hearings.] At a hearing on a summary suspension, the sole issue is whether
the licensee's license should remain suspended pending a final disciplinary
hearing and ruling.
[(d) If a positive test arises in a trial race, the horse is
eligible for entry into a race for which the trial was conducted unless that
positive test requires the horse to be placed on the steward’s list pursuant to
Subsection C of 15.2.6.9 NMAC. The purse
for both the trial and the race for which the trial was conducted will be held
until the case has been adjudicated.]
(4) Notice.
(a) Except as provided by these rules regarding
summary suspension, jockey riding infractions and trial races, the stewards or
a racing commission designee shall provide written notice, at least 10 days
before the hearing, to a person who is the subject of a disciplinary hearing. The person may waive their right to 10 days notice by executing a written waiver.
(b) Notice given under this section must
include: a statement of the time, place
and nature of the hearing; a statement of the legal authority and jurisdiction
under which the hearing is to be held; a reference to the particular sections
of the statutes or rules involved; a short, plain description of the alleged
conduct that has given rise to the disciplinary hearing; the possible penalties
that may be imposed.
(c) [If possible, the] The
stewards or the racing commission designee shall send the written notice of
the disciplinary hearing to the person who is the subject of the hearing either
by hand [deliver] delivery, certified or regular mail to
the licensee’s last provided address or by email. [the written notice of
the disciplinary hearing to the person who is the subject of the hearing. If hand delivery is not possible, the
stewards or a racing commission designee shall forthwith mail the notice to the
person's last known address, as found in the commission's licensing files, by
regular mail.] If the disciplinary
hearing involves an alleged medication violation that could result in the
disqualification of a horse, the stewards or a racing commission designee shall
provide notice of the hearing to the owner of the horse in the manner provided
by this subsection.
(d) Nonappearance of a summoned party after
adequate notice shall be construed as a waiver of the right to a hearing before
the stewards. The stewards may suspend
the license of a person who fails to appear at a disciplinary hearing after
written notice of the hearing has been sent, in compliance with this
subsection.
(5) Continuances.
(a) Upon receipt of a notice, a person
may request a continuance of the hearing.
(b) The stewards may grant a continuance
of any hearing for good cause shown.
(c) The stewards may at any time order a
continuance on their own motion.
(6) Evidence.
(a) Each witness at a disciplinary
hearing conducted by the stewards must be sworn by the presiding steward.
(b) The stewards shall allow a full
presentation of evidence and are not bound by the technical rules of
evidence. The stewards may admit hearsay
evidence if the stewards determine the evidence is of a type that is commonly
relied on by reasonably prudent people.
The rules of privilege recognized by state law apply in hearings before
the stewards. Hearsay evidence alone is
insufficient basis for a ruling.
(c) The burden of proof is on the person
bringing the complaint to show, by a preponderance of the evidence
that the licensee has violated or is responsible for a violation of the act or
a commission rule.
(d) The stewards [shall] may
[make a tape recording of] record a disciplinary or summary
suspension hearing and make a copy of the recording available on request,
at the expense of the requesting person.
(7) Ruling.
(a) The issues at a disciplinary hearing
shall be decided by a majority vote of the stewards. If the vote is not unanimous, the dissenting
steward shall include with the record of the hearing a written statement of the
reasons for the dissent.
(b) A ruling by the stewards must be on a
form prescribed by the commission and include:
the full name, license type, license number, and applicant ID
number of the person who is the subject
of the hearing; a statement of the charges against the person, including a
reference to the specific section of the Racing Act or rules of the commission
that the licensee is found to have violated; the date of the hearing and the
date the ruling was issued; the penalty imposed; any changes in the order of
finish or purse distribution; other information required by the commission.
(c) A ruling must be signed by a majority of the stewards.
(d) [If possible, the] The
stewards or their designee shall send the ruling to the person who is the
subject of the ruling either by hand [deliver] delivery,
certified or regular mail to licensee’s last provided address or by email.
[a copy of the ruling to the person who is the subject of the ruling. If hand delivery is not possible, the
stewards shall mail the ruling to the person's last known address, as found in
the commission's licensing files, by regular mail. If the ruling includes the disqualification of
a horse, the stewards shall provide a copy of the ruling to the owner of the
horse, the horsemen's bookkeeper, and the appropriate past performance service.]
(e) At the time the stewards inform a
person who is the subject of the proceeding of the ruling, the stewards shall
inform the person of the person's right to appeal the ruling to the commission
and apply for a stay.
(f) All fines imposed by the stewards
shall be paid to the commission within [30]14 days after the ruling is
issued, unless otherwise ordered.
[C.] B. Proceedings by the
commission:
(1) Party designations.
(a) A person who is the subject of a
disciplinary hearing, who filed an appeal from a stewards' ruling or who
otherwise seeks relief from the commission is a party to that proceeding.
(b) A party to a proceeding has the right
to present a direct case, cross-examine each witness, submit legal arguments and otherwise participate fully in the proceeding.
(c) A
party summoned to appear at a hearing must appear unless the party is excused
by the commission presiding officer.
Parties may appear with counsel or other representatives of their
choice. Counsel must be an attorney
licensed to practice law in this state or with the permission of the commission
is associated with an attorney licensed to practice law in this state and must
submit an entry of appearance no later than 10 days prior to the hearing date.
(d) A non-party to a proceeding who
wishes to appear in a contested case pending before the commission must prove
that they have an effected interest sufficient to create standing in the
case. The burden of proof is on the
party asserting standing in such a contested case.
(2) Notice.
(a) Not less than 20 days before the date
set for a hearing, the agency director, or acting agency director, shall serve
written notice on each party of record to the proceeding. The person may waive their right to said
notice by executing a written waiver.
(b) The agency director shall mail the
notice to the person's last known address, as found in the commission's
licensing files, by regular mail. If a
party is being represented by an attorney or other representative, notice will
be provided to the attorney or representative instead of on the party and is
deemed properly served.
(c) A notice of the hearing must
include: statement of time, place and nature of hearing; statement of the legal
authority and jurisdiction under which the hearing is to be held; reference to
the particular section of the statutes and rules involved; short, plain
statement of the matters asserted; and any other statement required by law.
(d) If the commission determines that a
material error has been made in a notice of hearing, or that a material change
has been made in the nature of a proceeding after notice
has been issued; the commission shall issue a revised notice. The party who has caused the change or error
requiring revised notice shall bear the expense of giving revised notice.
(e) A party to a proceeding may move to
postpone the proceeding. The motion must
be in writing, set forth the specific grounds on which it is sought and be
filed with the commission before the date set for hearing. If the person presiding over the proceeding
grants the motion for postponement, the commission shall cause new notice to be
issued.
(f) After a hearing has begun, the
presiding officer may grant a continuance on oral or written motion, without
issuing new notice, by announcing the date, time and
place for reconvening the hearing before recessing the hearing.
(3) Subpoenas and depositions.
(a) A member of the commission, the
agency director, the stewards, the presiding officer of a commission proceeding or other person authorized to perform duties
under the act may require by subpoena the attendance of witnesses and the
reproduction of books, records, papers, correspondence and other documents.
(b) A member of the commission, the
agency director, a presiding officer of a commission proceeding
or other person authorized by the commission may administer an oath or
affirmation to a witness appearing before the commission or a person authorized
by the commission.
(c) Each party is responsible for proper
service of any subpoenas it requests and for the payment of witness fees and
expenses as provided by this jurisdiction's civil procedures statute.
(d) On
written request by a party, the presiding officer may issue a subpoena
addressed to a sheriff or any constable to require the attendance of witnesses
and the production of books, records, papers or other objects as may be
necessary to compel the production of books, records, papers or other objects
shall be addressed to the appropriate person, shall be verified and shall
specify the books, records, papers or other objects desired and the relevant
and material facts to be proved by them.
(e) The
Administrative Procedures Act, Civil Statutes, Article 8, Section 12-8-15
governs the taking and the use of depositions.
Rule 1-036 of the New Mexico Rules of Civil Procedure governs admissions
of fact and genuineness of documents.
(4) Pleadings.
(a) Pleadings filed with the commission
include appeals, applications, answers, complaints, exceptions, replies and
motions. Regardless of an error in
designation, a pleading shall be accorded its true status in the proceeding in
which it is filed.
(b) A request for discovery or a response
to a request for discovery is not a pleading and is not a part of the
administrative record of a contested case unless the request or response is
offered into evidence.
(c) A pleading or brief filed with the
commission must be typewritten or printed on 8 1/2 inch by 11 inch white paper
with one-inch margins. Exhibits, unless
prepared according to other commission rules pertaining to maps, plats, or
similar documents, must be folded to the same size. Unless printed, the impression must be on one
side of the paper only. The
documentation must be double-spaced, except for footnotes and lengthy
quotations, which may be single-spaced.
Reproductions are acceptable, provided all copies are clear and
permanently legible. The original copy
of each pleading must be signed in ink by the pleader or the pleader's
representative.
(d) If the commission staff prepares a
form for a pleading, the commission staff shall furnish the form on
request. A pleading for which an
official form has been developed must conform substantially to the form. A pleading for which the commission staff has
not prepared an official form must contain:
the name of the pleader; the telephone number and street address of the
pleader's residence or business and the telephone number and street address of
the pleader's representative, if any; a concise statement of the facts relied
on by the pleader; a request stating the type of commission action desired by
the pleader; the name and address of each person who the pleader knows or
believes will be affected if the request is granted; any other matter required by
statute or commission rule; a
certificate of service.
(e) A party filing a pleading shall mail
or deliver a copy of the pleading to each party of record. If a party is being represented by an
attorney or other representative, service must be made on the attorney or
representative instead of on the party.
(f) An objection to a defect, omission,
or fault in the form or content of a pleading must be specifically stated in a
motion or an exception presented not later than the prehearing conference if
one is held and not later than 15 days before the date of the hearing if a
prehearing conference is not held. A
party who fails to timely file an objection under this subsection waives the
objection.
(g) Except as otherwise provided by this
subsection, a pleader may amend or supplement a pleading at any time before the
21st day after the date the pleading was filed, but not later than five days
before the date of the hearing. A
pleader may amend or supplement a pleading at any time: on written consent of each party of record;
or, as permitted by the presiding officer for the proceeding, when justice
requires the amendment or supplementation and when the amendment or
supplementation will not unfairly surprise another party.
(h) A pleading may adopt or incorporate
by specific reference any part of a document in the official files and records
of the commission. This subsection does
not relieve the pleader of the duty to allege in detail all facts necessary to
sustain the pleader's burden of proof.
(5) Filing pleadings.
(a) Except as otherwise provided by this
section, an original of each pleading must be filed with the commission. An original of each pleading relating to
discovery must be filed with the commission.
A pleading is considered filed only when actually
received by the commission. Each
pleading must include a certification that a copy has been mailed or delivered
on each party of record, stating the name of each party served and the date and
manner of service.
(b) If a pleading is sent to the
commission by first-class United States mail in an envelope or wrapper properly
addressed and stamped and is deposited in the mail one day or more before the
last day for filing the pleading, the pleading is considered received and filed
in time if the pleading is actually received not more
than 10 days after the deadline. A
legible postmark affixed by the United States postal service is prima facie
evidence of the date of mailing. For
purposes of responsive pleadings for which the deadline for filing is set by
the filing of another pleading, the pleading to be filed first is considered
filed when actually received by the commission.
(c) Unless otherwise provided by statute,
the presiding officer for a proceeding may extend the time for filing a
pleading on a motion made by a party before the filing deadline if the
presiding officer determines that there is good cause for the extension and
that the need for the extension is not caused by the neglect, indifference, or
lack of diligence of the party making the motion. A copy of a motion made under this section
must be served on all parties of record contemporaneously with the filing of the
motion.
(d) A pleading may be filed by facsimile,
provided an original and the required number of copies are received in the
commission's office not later than 5:00 p.m. of the third day after the date
the document was filed by facsimile. The
inability to transmit a document due to equipment malfunction or any other
cause does not relieve the person attempting to file the document of the filing
deadline.
(e) If the deadline for filing a pleading
falls on a Saturday, Sunday, or legal holiday, the period is extended to
include the next day that is not a Saturday, Sunday, or legal holiday.
(f) The failure to file a pleading in
accordance with this section may result in the pleading being struck.
(6) Place and nature of hearings.
(a) A
hearing in a commission proceeding is open to the public.
(b) A hearing shall be held in
Albuquerque unless: for good cause
stated, the commission designates another place for the hearing; or, the act require otherwise.
(c) Unless precluded by law or objected
to by a party, the commission may allow informal disposition of a proceeding
without a hearing. Informal disposition
includes, but is not limited to, disposition by stipulation, agreed settlement,
consent order, dismissal, and default.
(7) Presiding officers.
(a) One or more members of the
commission, an administrative law judge, or a duly designated hearing officer may
serve as the presiding officer for a commission proceeding. Objections to the presiding officer must be
made in writing to the agency director at least 20 calendar days prior to the
hearing. If in any case a combination of
objections to a presiding officer(s) would result in the matter not being
heard, the removal of the hearing officer shall not be effective.
(b) The presiding officer may: authorize the taking of depositions; issue
subpoenas to compel the attendance of witnesses and the production of papers
and documents; administer oaths; receive evidence; rule on the admissibility of
evidence and amendments to pleadings; examine witnesses; set reasonable times
within which a party may present evidence and within which a witness may
testify; permit and limit oral argument; issue interim orders; recess a hearing
from day to day and place to place; request briefs before or after the
presiding officer files a report or proposal for decision; propose findings of
fact and conclusions of law; propose orders and decisions; perform other duties
necessary to a fair and proper hearing.
(c) An administrative law judge
designated as the presiding officer must be an attorney licensed to practice in
this state.
(d) A person may not serve as the
presiding officer of a proceeding in which the person has an economic
interest. A person is considered to have
an economic interest in a proceeding if the person, a member of the person's
immediate family, or a dependent, business partner, or client of the person has
an economic interest in the proceeding.
(8) Conferences.
(a) On written notice, the presiding
officer may, on the officer's own motion or on the motion of a party, direct
each party to appear at a specified time and place for a prehearing conference
to formulate issues and consider any of the following: simplifying issues; amending the pleadings;
making admissions of fact or stipulations to avoid the unnecessary introduction
of proof; designating setting the order of procedure at a hearing; identifying
and limiting the number of witnesses; resolving other matters that may expedite
or simplify the disposition of the controversy, including settling issues in
dispute.
(b) The presiding officer shall record
the action taken at the prehearing conference unless the parties enter into a
written agreement as to the action. The
presiding officer may enter appropriate order concerning prehearing discovery,
stipulations of uncontested matters, presentation of evidence and scope of
inquiry.
(c) During a hearing, on written notice
or notice stated into the record, the presiding officer may direct each party
or the representative of each party to appear for a conference to consider any
matter that may expedite the hearing and serve the interests of justice. The presiding officer shall prepare a written
statement regarding the action taken at the conference and the statement must
be signed by each party and made a part of the record.
(9) Discovery.
(a) On written request by a party, the
presiding officer or the agency director may issue a subpoena to require the
attendance of witnesses and the production of books, records, papers, or other
objects as may be necessary and proper for the purposes of a proceeding.
(b) A motion for a subpoena to compel the
production of books, records, papers, or other objects shall be addressed to
the appropriate person, shall be sworn to and shall specify the books, records,
papers, or other objects desired and the relevant and material facts to be
proved by them.
(c) Discovery
on behalf of commission shall only be provided to the licensee or to counsel
who has submitted an entry of appearance.
(10) Order of hearing.
(a) The presiding officer shall open the
hearing, make a concise statement of its scope and purposes
and announce that a record of the hearing is being made.
(b) When a hearing has begun a party or a
party's representative may make statements off the record only as permitted by
the presiding officer. If a discussion
off the record is pertinent, the presiding officer shall summarize the
discussion for the record.
(c) Each appearance by a party, a party's
representative, or a person who may testify must be entered on the record.
(d) The presiding officer shall receive
motions and afford each party of record an opportunity to make an opening
statement.
(e) Except as otherwise provided by this
subsection, the party with the burden of proof is entitled to open and
close. The presiding officer shall
designate who may open and close in a hearing on a proceeding if the proceeding
was initiated by the commission or if several proceedings are heard on a
consolidated record.
(f) After opening statements, the party
with the burden of proof may proceed with the party's direct case. Each party may cross-examine each witness.
(g) After the conclusion of the direct
case of the party having the burden of proof, each other party may present
their direct case and their witnesses will be subject to cross-examination.
(h) The presiding officer may allow
nonparty participants to cross examine a witness if the presiding officer
determines that the cross examination may lead to significantly fuller
disclosure of the facts without unduly delaying the hearing or burdening the record.
(i) At
the conclusion of all evidence and cross-examination, the presiding officer
shall allow closing statements.
(j) Before writing a report or proposal
for decision if required by law, the presiding officer may call on a party for
further relevant and material evidence on an issue. The presiding officer may not consider the
evidence or allow it into the record without giving each party an opportunity
to inspect and rebut the evidence.
(11) Behavior.
(a) Each party, witness, attorney, or
other representative shall behave in all commission proceedings with dignity,
courtesy and respect for the commission, the presiding officer and all other
parties and participants. Attorneys
shall observe and practice the standards of ethical behavior prescribed for the
profession by the code of professional responsibility.
(b) An individual who violates this
section may be excluded from a hearing by the presiding officer for a period
and on conditions that are just, or may be subject to other just, reasonable and lawful disciplinary action prescribed by the
presiding officer.
(12) Evidence.
(a) All testimony must be given under
oath administered by the presiding officer.
The presiding officer may limit the number of witnesses and shall
exclude all irrelevant, immaterial, or unduly repetitious evidence.
(b) The presiding officer may, unless
precluded by statute, admit evidence of a type commonly relied on by reasonably
prudent persons in the conduct of their affairs. The rules of privilege recognized by law in
this jurisdiction apply in commission proceedings.
(c) A party may object to offered
evidence and the objection shall be noted in the record. Formal exceptions to rulings by the presiding
officer during a hearing are unnecessary.
A party, at the time a ruling is made or sought, shall make known to the
presiding officer the action the party desires.
(d) When
the presiding officer rules to exclude evidence, the party offering the
evidence may make an offer of proof by dictating or submitting in writing the
substance of the proposed evidence, before the closing
of the hearing. The offer of proof
preserves the point for review. The
presiding officer may ask a witness or offered witness questions necessary to
indicate that the witness would testify as represented in the offer of
proof. An alleged error in sustaining an
objection to questions asked on cross-examination is preserved without making
an offer of proof.
(e) The presiding officer may take
official notice of judicially cognizable facts and of facts generally
recognized within the area of the commission's specialized knowledge. The commission shall notify each party of record
before the final decision in a proceeding of each specific
fact officially noticed, including any facts or other data in staff
memoranda. A party must be given an
opportunity to rebut the facts to be noticed.
(f) The special skills and knowledge of
the commission and the commission staff may be used in evaluating the evidence.
(g) The presiding officer may receive
documentary evidence in the form of copies or excerpts if the original is not
readily available. On request, the
presiding officer shall allow a party to compare the copy with the original. If many similar documents are offered in
evidence, the presiding officer may limit the documents admitted to a number
which are representative of the total number, or may
require that the relevant data be abstracted from the documents and presented
as an exhibit. If the presiding officer
requires an abstract, the presiding officer shall allow each party or the
party's representative to examine the documents from which the abstracts are
made.
(h) The presiding officer may require
prepared testimony in a hearing if the presiding officer determines that it
will expedite the hearing without substantially prejudicing the interests of a
party. Prepared testimony consists of
any document that is intended to be offered as evidence and adopted as sworn
testimony by a witness who prepared the document or supervised its
preparation. A person who intends to
offer prepared testimony at a hearing shall prefile the testimony with the
commission on the date set by the presiding officer and shall serve a copy of
the prepared testimony on each party of record.
The presiding officer may authorize the late filing of prepared
testimony on a showing of extenuating circumstances. The prepared testimony of a witness may be
incorporated into the record as if read or received as an exhibit, on the
witness being sworn and identifying the writings as a true and accurate record
of what the testimony would be if the witness were to testify orally. The witness is subject to clarifying
questions and to cross examination and the prepared testimony is subject to a
motion to strike either in whole or in part.
(i) Documentary
exhibits must be of a size, which will not unduly encumber the record. Whenever practicable, exhibits must conform
to the size requirements in these rules for pleadings. The first sheet of the exhibit must briefly
state what the exhibit purports to show and the pages of the exhibit must be
numbered consecutively. Exhibits may
include only facts material and relevant to the issues of the proceedings. Maps or drawings must be rolled or folded so
as not to encumber the record. Exhibits
not conforming to this subsection may be excluded.
(j) The party offering an exhibit shall
tender the original of the exhibit to the presiding officer for
identification. The party shall furnish
one copy to the presiding officer and one copy to each party of record. A document received in evidence may not be
withdrawn except with the permission of the presiding officer. If an exhibit has been offered, objected to and excluded, and the party offering the exhibit
withdraws the offer, the presiding officer shall return the exhibit to the
party. If the party does not withdraw
the offered exhibit, the exhibit shall be numbered for identification, endorsed
by the presiding officer with the ruling on the exhibit and included in the
record to preserve the exception.
(k) The presiding officer may allow a
party to offer an exhibit in evidence after the close of the hearing only on a
showing of extenuating circumstances and a certificate of service on each party
of record.
(13) Reporters and transcripts.
(a) If necessary, the commission shall
engage a court reporter to make a stenographic record of a hearing. The commission may allocate the cost of the
reporter and transcript among the parties.
(b) If a person requests a transcript of
the stenographic record, the commission may assess the cost of preparing the
transcript to the person.
(c) A party may challenge an error made
in transcribing a hearing by noting the error in writing and suggesting a
correction not later than 10 days after the date the transcript is filed with
the commission. The party claiming
errors shall serve a copy of the suggested corrections on each party of record,
the court reporter and the presiding officer. If proposed corrections are not objected to
before the 15th day after the date the corrections were filed with the
commission, the presiding officer may direct that the suggested corrections be
made and the manner of making them. If
the parties disagree on the suggested corrections, the presiding officer shall
determine whether to change the record.
(14) Findings of fact and conclusions of
law.
(a) The presiding officer may direct a
party to draft and submit proposed findings of fact and conclusions of law or a
proposal for decision that includes proposed findings of fact and conclusions
of law. The presiding officer may limit
the request for proposed findings to a particular issue of fact.
(b) Proposed findings of fact submitted
under this section must be supported by concise and explicit statements of
underlying facts developed from the record with specific reference to where in
the record the facts appear.
(15) Proposal for decision.
(a) Where a hearing officer conducts a
hearing, the hearing officer shall complete a report containing his or her
findings of fact, conclusions of law and recommendations for commission action.
(b) Any
commissioner who did not hear the case may not participate in a decision in
which the commission rejects, modifies, adds to, or makes substitutions for the
findings of fact in a hearing officer's report unless the commission has
reviewed all portions of the record that pertain to such findings of fact.
(c) Where the commission itself is the
hearing body, the commission shall complete a report containing findings of
fact and conclusions of law. No
commissioner may participate who has not either heard the case or reviewed the
entire record.
(d) The person preparing a proposal for
decision under this section shall initiate service of a copy of the hearing
officer's report or commission's report on each party of record no later than
31 calendar days after the close of the hearing.
(e) A party of record may, not later than
10 business days after the date of service of a hearing officer's report or
commission's report, file exceptions to the report. A reply to an exception filed under this
subsection must be filed no later than five business days after the last day
for filing the exceptions. A copy of
each exception and reply must be served on all parties of record.
(f) After
the expiration of time for filing exceptions and replies, the commission shall
consider the proposal for decision in open or closed session. The commission may: adopt the proposal for decision, in whole or
in part; decline to adopt the proposal for decision, in whole or in part;
modify the recommendations or the hearing officer’s report, in whole or in part
based on aggravating or mitigating factors or inaccuracies; remand the
proceeding for further examination by the same or a different presiding
officer; or direct the presiding officer to give further consideration to the
proceeding with or without reopening the hearing.
(g) If on remand additional evidence is
received which results in a substantial revision of the proposal for decision,
a new proposal for decision shall be prepared, unless a
majority of the commission, on remand, has heard the case or read the
record. A new proposal for decision must
be clearly labeled as such and all parties of record are entitled to file
exceptions, replies and briefs.
(16) Dismissal. On its own motion or a motion by a party, the
presiding officer may dismiss a proceeding, with or without prejudice, under
conditions and for reasons that are just and reasonable, including: failure to timely pay all required fees to
the commission; unnecessary duplication of proceedings; withdrawal; moot
questions or obsolete petitions; and lack of jurisdiction.
(17) Orders.
(a) Except as otherwise provided by these
rules, the commission shall issue its final order not later than 30 days after
the date the commission votes on the ultimate issues in the proceeding. A final order of the commission must be in
writing and be signed by at least one member of the members of the commission
who voted in favor of the action taken by the commission. A final order must include findings of facts
and conclusions of law, separately stated.
(b) The commission staff shall mail or
deliver a copy of the order to each party or the party's representative.
(c) A final order of the commission takes
effect on the date the order is issued, unless otherwise stated in the order.
(d) If the commission finds than an
imminent peril to the public health, safety, or welfare requires an immediate
final order in a proceeding, the commission shall recite that finding in the
order in addition to reciting that the order is final from the date
issued. An order issued under this
subsection is final and appealable from the date issued and a motion for
rehearing is not a prerequisite to appeal.
(18) Rehearing.
(a) Within 10 days following issuance of
a final commission order, a party adversely affected by the order may file a
petition for a rehearing stating the reasons for requesting a rehearing. The commission shall grant a rehearing only
in cases of newly discovered material evidence, which the party could not
reasonably have discovered at an earlier time, or other good cause.
(b) An order granting a motion for
rehearing vacates the preceding final order.
The order granting a motion for rehearing may direct that the hearing be
reopened or may incorporate a new final decision. Except as otherwise provided by these rules,
if the commission renders a new decision, a motion for rehearing directed to
the new decision is a prerequisite to appeal.
(19) Ex parte communications. No party to a proceeding before the
commission shall, at any time prior to the issuance of a final commission
decision, discuss or otherwise communicate with a hearing officer assigned to
hear the case or with any commission member who will or may participate in the
commission's decision in the case, regarding any issue in the case, without at
the same time making the same communication to all other parties, including the
commission's administrative prosecutor.
This rule shall not apply to communications limited to such items as
ascertaining the time or place of a hearing or the procedures to be followed at
a hearing.
(20) Administrative penalties.
(a) If the commission determines that a
person regulated under the act has violated the act or a rule or order adopted
under the act in a manner that constitutes a ground for disciplinary action
under the act, the commission may assess an administrative penalty against that
person as provided by this section.
(b) The commission delegates to the
agency director the authority to prepare and issue preliminary reports pursuant
to the act. If, after examination of a
possible violation and the facts relating to that possible violation, the
agency director determines that a violation has occurred, the agency director
shall issue a preliminary report that states the facts on which the conclusion
is based, the fact that an administrative penalty is to be imposed and the
amount to be assessed. The amount of the
penalty may not exceed $1,000 for each violation. Each day/occurrence that a violation
continues may be considered a separate violation. In determining the amount of the penalty, the
agency director shall consider the seriousness of the violation.
(c) If
the commission finds based on the evidence that an appeal is frivolous, unreasonable or unnecessary or determined to be an abuse of
process or malicious, the license holder may be fined in the amount up to
$2,500.
(d) Not later than the 10th day after the
date on which the agency director issues the preliminary report, the agency
director shall provide a copy of the report to the person charged with the
violation, together with a statement of the right of the person to a hearing
relating to the alleged violation and the amount of the penalty. If possible, the agency director shall hand
deliver the preliminary report. If hand
delivery is not possible, the agency director shall mail the preliminary report
to the person's last known address, as found in the commission's files, by
regular mail and by certified mail, return receipt requested.
(e) Not later than the 20th day after the
date on which the agency director delivers or sends the preliminary report, the
person charged may make a written request for a hearing or may remit the amount
of the administrative penalty to the commission. Failure to request a hearing or to remit the
amount of the administrative penalty within the period prescribed by this
subsection results in a waiver of a right to a hearing on the administrative
penalty. If the person charged requests
a hearing, the hearing shall be conducted in the same manner as other hearings
conducted by the commission.
(f) If it is determined after the
hearing that the person has committed the alleged violation, the commission
shall give written notice to the person of the findings established by the
hearing and the amount of the penalty and shall enter an order requiring the
person to pay the penalty.
(g) Not later than the 30th day after the
date on which the above notice is received, the person charged shall pay the
administrative penalty in full or exercise the right to appeal to the
appropriate court either the amount of the penalty or the fact of the
violation. If a person exercises a right
of appeal either as to the amount of the penalty or the fact of the violation,
the amount of the penalty is not required to be paid until the 30th day after
the date on which all appeals have been exhausted and the commission's decision
has been upheld.
(21) Exclusion.
(a) The steward, agency director, or
commission may order an individual ejected or excluded from all or part of any
premises under the regulatory jurisdiction of the commission if the stewards,
agency director, or commission determine that the individual's presence on
association grounds is inconsistent with maintaining the honesty and integrity
of racing.
(b) An exclusion may be ordered
separately or in conjunction with other disciplinary action taken by the
stewards or commission. If exclusion is
ordered separately, the excluded individual is entitled to a hearing before the
stewards or commission. A hearing on
exclusion shall be conducted in the same manner as other hearings conducted by
the stewards or commission.
(c) If an individual is excluded under
this section, a race animal owned or trained by or under the care or
supervision of the individual is ineligible to be entered or to start in a race
in this jurisdiction.
(22) Rulings in other jurisdictions.
(a) Reciprocity. The stewards shall honor rulings from other
pari-mutuel jurisdictions regarding license suspensions, revocation
or eligibility of horses.
(b) Appeals of reciprocal rulings. Persons subject to rulings in other
jurisdictions shall have the right to request a hearing before the commission
to show cause why such ruling should not be enforced in this jurisdiction. Any request for such hearing must clearly set
forth in writing the reasons for the appeal.
[15.2.1.9 NMAC - Rp, 15 NMAC 2.1.9, 3/15/2001; A, 3/31/2003; A, 5/30/2003;
A, 6/15/2004; A, 6/30/2009; A, 9/15/2009; A, 12/1/2010; A, 5/1/2013; A,
1/1/2014; A, 3/16/2015; A, 5/1/2015; A, 9/16/2015; A, 3/15/2016; A/E,
6/28/2016; A, 9/16/2016; A, 12/16/2016; A, 7/1/2017; A, 3/14/2018; A,
9/26/2018; A, 4/9/2019; A, 12/28/2021; A, 5/24/2022; A, 4/9/2024]